United States v. Tigano

United States Court of Appeals, Second Circuit

January 23, 2018

UNITED STATES OF AMERICA, Appellee,v.JOSEPH TIGANO, III, Defendant-Appellant.

Argued: October 12, 2017

Joseph
Tigano, III appeals from his conviction in the United States
District Court for the Western District of New York
(Elizabeth A. Wolford, J.) on five counts of
drug-related charges, including the manufacture of 1, 000 or
more marijuana plants, in violation of 21 U.S.C. §
841(a)(1) and § 841(b)(1)(A). Tigano argues that his
constitutional and statutory rights to a speedy trial were
violated by his nearly seven years of pretrial detention.
Because we agree with Tigano that his Sixth Amendment right
to a speedy trial was violated, we need not consider his
remaining arguments regarding his statutory right to a speedy
trial and an alleged Fourth Amendment violation by an aerial
infrared scan of his residence. Accordingly, on November 15,
2017, we REVERSED the judgment of the district court and
DISMISSED WITH PREJUDICE the indictment on all related
charges against Tigano. We remanded to the district court for
the limited purpose of releasing Tigano and indicated an
opinion would follow.

JOSEPH
J. KARASZEWSKI, Assistant United States Attorney, for James
P. Kennedy, Jr., Acting United States Attorney for the
Western District of New York, Buffalo, N.Y., for Appellee.

On July
8, 2008, Joseph Tigano, III and his father, Joseph Tigano,
Sr., were arrested on charges related to a marijuana growing
enterprise allegedly operated by the two men. When Drug
Enforcement Administration ("DEA") task force
members executed a search warrant at the Tiganos'
residence on the morning of the arrest, they discovered over
1, 400 marijuana plants. On October 2, 2008, Tigano and his
father were each indicted on six counts. Four of the counts
charged drug offenses related to the alleged marijuana
growing operation; the remaining two counts charged weapons
offenses stemming from firearms found at the residence.

Nearly
five years later, on November 25, 2013, Tigano's father
pled guilty to one count of manufacturing 50 or more
marijuana plants. Tigano refused to accept a plea and
proceeded to trial-nearly seven years after his arrest-on May
4, 2015. He was convicted by a jury on May 8, 2015 on five of
the six counts in the indictment. Tigano was imprisoned
during the entirety of the nearly seven years of pretrial
proceedings. On appeal, Tigano argues that his Sixth
Amendment right to a speedy trial was violated by an
oppressive period of pretrial incarceration. On November 15,
2017, this Court filed an Order that reversed the judgment of
the district court and dismissed with prejudice the
underlying indictment. We remanded the case for the limited
purpose of releasing Tigano from detention and indicated that
an opinion would follow. Tigano was released pursuant to that
Order on November 15, 2017.

Tigano's
facts are exceptional in nearly every meaningful respect
within the context of a Sixth Amendment speedy trial
analysis. Accordingly, we begin by detailing the
circumstances that resulted in Tigano's nearly seven
years of pretrial detention. We then offer some historical
context for our analysis of this constitutional right in
order to better situate Tigano's exceptional facts.
Finally, we assess Tigano's delay under the legal
framework provided by the Supreme Court in Barker v.
Wingo, 407 U.S. 514 (1972).

FACTUAL
BACKGROUND

The
pretrial detention experienced by Joseph Tigano, III appears
to be the longest ever experienced by a defendant in a speedy
trial case in the Second Circuit. Tigano's experience is
an extreme outlier even among the severe examples found
within Sixth Amendment case law. Yet no single, extraordinary
factor caused the cumulative seven years of pretrial delay.
Instead, the outcome was the result of countless small
choices and neglects, none of which was individually
responsible for the injustice suffered by Tigano, but which
together created this extreme instance of a Sixth Amendment
violation. A review of the procedural history reveals that
Tigano was the victim of poor trial management and general
indifference at every level toward this low-priority
defendant in a straightforward case.

I.
July 8, 2008-April 8, 2009: Arrest, Arraignment, and Hunger
Strike

On July
8, 2008, Joseph Tigano, III and his father were arrested. On
October 20, 2008, Tigano was arraigned and entered a not
guilty plea before Magistrate Judge Hugh Scott. At his
arraignment, Tigano (through his then- attorney Thomas
Farley) conveyed to the court that he would not accept a plea
and wished to preserve his speedy trial rights. The next
court meeting on this case was initially scheduled for March
19, 2009, but was rescheduled on motion of Tigano's
father, who requested a delay. Tigano's attorney failed
to ever convey this change in date to Tigano. When the date
of the scheduled conference arrived and no one explained to
Tigano why he was not being transported to court, Tigano
stopped eating. He later explained to the court that the
hunger strike was his response to being left in his jail cell
on a scheduled court date with no explanation from his
attorney or the court.

II.
April 9, 2009-August 11, 2009: First Competency Exam

On
April 9, 2009, the parties convened for the delayed status
conference. This status conference would result in the first
of what would eventually be three court-ordered competency
exams, each of which would confirm that Tigano was competent
to stand trial. At this juncture in Tigano's pretrial
detention, Farley requested a competency evaluation, which
was ordered by Magistrate Judge Scott. The transcript of the
proceeding makes clear that the driving motivation for the
decision to order a competency exam was Tigano's repeated
demand for his speedy trial. Tigano's prioritization of a
speedy trial appears to have been his primary point of
disagreement with Farley and Magistrate Judge Scott
explicitly cited Tigano's repeated insistence on a speedy
trial as he ordered the competency evaluation. Indeed, Tigano
raised his speedy trial rights no fewer than ten times in
this single status conference. It was no mystery to any party
that Tigano's top priority was moving quickly to trial.
Instead, Magistrate Judge Scott ordered a competency exam
and, as a result, the next two status conferences were
postponed while the court awaited the results of the
competency exam.

III.
August 12, 2009-January 20, 2010: Unresolved
Representation

The
parties were finally able to convene for a status conference
on August 12, 2009 after Tigano had returned from his
competency evaluation. The exam determined that "he did
not suffer from any 'major mental illness, ' he had a
'good understanding of his current legal
circumstances' and he was able to 'assist properly in
his defense.'" Appellant's Br. at 8. Tigano
asked the court for permission to proceed pro se, in large
part because of conflicts with Farley regarding Tigano's
desire to proceed straight to trial as quickly as possible.
The court then engaged Tigano in an extended colloquy, and
required the government to recite the possible sentence faced
by Tigano if he were convicted. At this first hearing after
the competency exam, Magistrate Judge Scott told Tigano that
he was making a "huge mistake" and that his
answers-specifically, his pleas to represent himself so as to
proceed quickly to trial-"are tending to make me believe
he needs to be evaluated again." App'x at 129.
Magistrate Judge Scott declined to decide on the request to
proceed pro se, appointed standby counsel to Tigano to
explain the risks to him, and scheduled another status
conference for two days later. The second status conference
was largely a replay of the first: Tigano's standby
counsel again confirmed that Tigano appeared to understand
the charges, the government recited the charges Tigano was
facing, and Magistrate Judge Scott expressed his skepticism
and reserved decision. Nearly one month later, Magistrate
Judge Scott granted Tigano's request to proceed pro se.
There followed a series of short status conferences, one of
which appears to have been scheduled only because Farley
failed to appear as directed to hand over files to Tigano at
the previous status conference.

It is
during this phase of the proceedings that Tigano's
statements in court became increasingly desperate and
plaintive as he pleaded for the case to move toward
resolution. He continued to repeatedly raise his right to a
speedy trial and to plead for severance from his father. As
Tigano explained to the court, "What I'm saying is
he's a free man. I'm incarcerated. I'm in jail.
And my father and his lawyer can actually keep putting
motions in to delay this further. I'd like to
severance…" App'x at 142. Tigano's father
repeatedly moved to delay proceedings. Even so, the court
told Tigano that his father had "caused no delay in your
case whatsoever." App'x at 142.

IV.
January 21, 2010-May 16, 2010: Second Competency
Exam

When
oral argument was eventually held on January 21, 2010, Tigano
appeared with his standby counsel, Cheryl Meyers Buth, who
would remain his attorney-either stand-by or appointed-for
most of the remaining five-plus years of pretrial detention.
The scheduled trial date was postponed at the requests of
both the father's attorney and the Assistant United
States Attorney ("AUSA"), both of whom had other
cases on their calendars. When Tigano's attorney
addressed the court in this hearing, she first reiterated
Tigano's desire for severance and a speedy trial. She
next advised the court that

despite the fact that there's been a forensic exam
finding that Mr. Tigano is competent to proceed, I have
serious reservations about his ability to understand the
charges and the procedures and represent himself.

App'x at 225.

This
advisement from Tigano's attorney prompted Magistrate
Judge Scott to order the second competency exam of Tigano and
led Tigano to ask, "Another one, sir?" App'x at
229. To be clear, there was no allegation that the first
competency exam was defective in any way, nor was there any
allegation that there had been a change in Tigano's
behavior. Instead, both this second exam and the first exam
281 days earlier appear to have been prompted largely by
Tigano's repeated invocation of his speedy trial rights.

At a
hearing on March 31, 2010-which Tigano did not attend because
he had still not returned from his competency evaluation-the
AUSA prosecuting the case acknowledged that Tigano's
desire for a speedy trial was part of the rationale for the
second competency exam, remarking that "Mr. Tigano III
had been sort of demanding his speedy trial, which is part of
the prompting for the Court sending him out for this
evaluation." App'x at 241.

The
report for the second competency exam was received by the
court on April 14, 2010-83 days after the hearing at which it
was ordered-and acknowledged by Magistrate Judge Scott at an
April 16, 2010 suppression hearing. Again, the report
indicated that Tigano was competent to stand trial. Again, a
hearing was delayed at the request of counsel, this time at
the requests of counsel for both Tigano and Tigano's
father. Again, Magistrate Judge Scott asked the government to
submit an order excluding time under the Speedy Trial Act.

V.
May 17, 2010-April 4, 2012: Confusion Regarding Multiple
Magistrate Judges, Repeated Extensions of Time by
Tigano's Father Joined by Tigano's Attorney, and
Court Reporter Delays

Over
the course of the next nearly two years, Tigano experienced
multiple delays stemming primarily from confusion among
judges regarding overlapping motions and an erroneous
referral order from Judge Skretny. Most significantly, two
separate magistrate judges held in abeyance two separate sets
of evidentiary motions until Judge Skretny decided appeals
regarding portions of the suppression motion initially
decided by Magistrate Judge Scott. That decision was finally
issued by Judge Skretny on January 19, 2011 as a
three-sentence text order nearly six months after the motions
were originally decided.

Additional
delays during this period resulted from a variety of small
neglects. The long-postponed hearing before Magistrate Judge
McCarthy was delayed for an additional 40 days because the
government failed to produce discovery in a timely manner.
The court reporter submitted the transcript of the one-day
suppression hearing 117 days after it was held, delaying the
progress of the case by nearly four months. Magistrate Judge
Scott issued his report and recommendation on December 15,
2011, nearly seven months after the hearing and more than a
year and a half after Tigano had filed his motion.

On
April 5, 2012, Judge Skretny accepted the reports and
recommendations issued by the magistrate judges and advised
attorneys that they should submit motions to sever.
Tigano's attorney entered no such motion and instead
joined the father's request for an adjournment to delay
the scheduled status conference. At this point, Tigano
entered a new phase of delay caused largely by unsuccessful
plea negotiations.

Between
the July 10, 2012 status conference-at which Tigano's
attorney and the government informed the court that they were
involved in plea negotiations -and the father's entry of
a plea on November 25, 2013, the court held six status
conferences that were each adjourned for one reason or
another, each of which reported that Tigano was involved in
plea negotiations with the government. A large part of the
reason for this period of delay was that the government
waited nearly a year to present Tigano a written plea offer.
The transcript from the May 28, 2013 status conference
indicates that AUSA Thomas S. Duszkiewicz was involved in a
major criminal trial and Tigano's case had taken a
definitive back seat within the U.S. Attorney's office.
Indeed, an AUSA stepped in for Duszkiewicz at the May 28,
2013 status conference, and conceded when questioned about
the delay, "[t]his is definitely not the defense's
issue, " citing Duszkiewicz's lengthy trial and gaps
in information within the U.S. Attorney's office as
reasons for the delay in the presentation of a written plea.
App'x at 661.

When
Tigano's attorney finally received the written offer, it
was sent to her the day before a scheduled status conference,
which resulted in yet another adjournment because she had not
yet had an opportunity to present the plea to Tigano. At this
status conference, as with several prior conferences, AUSA
Duszkiewicz reiterated his view that the plea agreement was a
"two-for-one" ...

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